Personal Injuries — Court orders Damages of HK$9 million pursuant to FAO and LARCO
In Tam Li Kam Wah Agnes, the Administratrix of the estate of Tam Michael Arthur Shiu Cheung, the Deceased, and in her personal capacity v Wong Pui Hang William, the Administrator of the estate of Wong Ian Yik, deceased and Liberty International Insurance Limited [2024] HKCFI 3580, the Court assessed damages at around HK$9 million under the Fatal Accidents Ordinance (Cap.22, “FAO”) and Law Amendment and Reform (Consolidation) Ordinance (Cap.23, “LARCO”). Issues relating to, inter alia, accumulation of wealth and future loss of dependency, were dealt with extensively by the Court.
Tim Kwok, instructed by Messrs. Mike So, Joseph Lau & Co, acted for the Plaintiff, and Christina Lee, instructed by Messrs. Anthony Siu & Co, acted for the 2nd Defendant.
Valerie Tang provides her analysis on the judgment below.
Facts
The trial concerns the assessment of damages in a fatal accident, where Tam Michael Shiu Cheung (“Tam”) and Wong Ian Yik (“Wong”) both passed away in a traffic accident while on board a vehicle driven by Wong.
Tam’s mother (the “Mother”, as Plaintiff) sued Wong’s Estate (as 1st Defendant) and Liberty International (as 2nd Defendant) in both her personal capacity and as Administratrix of Tam’s Estate. Prior to trial, the Mother’s personal claim was settled. By consent between the Mother and the 2nd Defendant (defending as if it were Wong’s Estate), interlocutory judgment for 85% of the claim was also entered against Wong’s Estate with the Mother conceding 15% contributory negligence. The only dispute is quantum.
Quantum
The Mother’s pleaded claim under FAO and LARCO exceeded HK$20 million, although the amount varied in the course of and even after trial. On the other hand, the 2nd Defendant projected an award of around HK$2.9 million.
LARCO Claim
The main head claimed under LARCO by the Mother was the loss of accumulation of wealth. According to the Mother, as a commercial pilot, it was expected that Tam would have been promoted to First Officer, Senior First Officer and then to Captain by the time of the trial. Accordingly, but for his premature death, there would have been an increased accumulation of wealth by way of savings and investments by Tam.
In this regard, the viability of the promotions and their timing (if promoted) were hotly contested.
Upon considering the documentary and witness evidence, the Court held that Tam’s positive performance suggested that he would have achieved the relevant promotions, but made different factual findings as to the respective timings. Specifically, in relation to Tam’s promotion as Captain, the Mother attempted to adduce new evidence to supplement her case on the timing after parties have closed their respective cases at trial pending closing submissions, including: (1) news articles seeking to corroborate her witness’ evidence on Cathay Pacific’s measures to replenish the pilot pool; and (2) an unverified letter from one of the Mother’s witnesses to supplement the same. This was rejected by the Court, which noted that the news articles could not and does not materially change the evidence before the Court during trial. The attempt to adduce the letter was also eventually dropped by the Mother.
FAO Claim
On the other hand, under the FAO, the Mother claimed for, inter alia, future loss of dependency. In that regard, the major disputes were the quantum itself and the applicable multipliers.
Regarding the amount, the Court rejected the Mother’s assertion that Tam would have paid her HK$5,000 more every month after his job promotions, taking into account, inter alia, the lack of any concrete basis for such an expectation, and the likelihood of Tam of starting his own family with his stable girlfriend but for his death. As for the applicable multipliers, the Court accepted the Mother’s reliance on the actual life tables for 2020 for calculating Tam’s parents’ life expectancies. It was held that Tam’s father and Mother are expected to live until 88.44 years old and 90.31 years old with a multiplier of 15.1 and 13.56 respectively.
Takeaway – Adequacy of Pleaded Case
In dealing with the Plaintiff’s multiple revisions of her pleaded claim, the Court stressed that the parties should from time to time revisit the adequacy of the pleaded case, especially as there may have been developments after the pleading stage. Practitioners should bear in mind that the pleadings should provide an adequate basis of the case formulated and the evidence to be adduced. Piecemeal revisions of the pleaded case after the matter is set down for trial would be the least expected, although the approach in dealing with such matters ultimately turns on the circumstances and complexity of the case.
Tim Kwok
More details can be found in Tim’s profile.
Christina W. Lee
Christina read law as an external student of the University of London and sat the Bar Finals examination of England and Wales in 1988. That year she was called to the English Bar and the Hong Kong Bar. She has developed a practice in personal injuries, medical negligence and insurance related matters over the years.
Before joining the Bar Christina was a simultaneous interpreter with the Hong Kong Government leaving the civil service in 1988 when she was Chief Interpreter (Simultaneous Interpretation).
More details can be found in Christina’s profile.
Valerie Tang
“Valerie is quick-witted, articulate in her advocacy and very knowledgeable with a sharp legal intuition. She is definitely a rising star in the legal industry and one to look out for.”
Legal 500 Asia-Pacific 2025, Commercial Disputes — Rising Star
Valerie was called to the Bar in 2019. She enjoys a broad civil practice with a special focus on company and commercial law. Valerie also regularly acts as sole advocate in family, land, probate, trust and personal injury matters. She has also been developing a niche practice in mental health related matters, including MHO Part II and Beddoe applications.
Recently, in SA & Ors v BH & Anor [2024] HKCFI 1357, Valerie acted for the Plaintiffs (as sole advocate) against Senior Counsel to resist an application for security for costs in arbitration proceedings which were initiated by parties to set aside an arbitral award. This was the first time the Court confirmed the jurisdiction to do so in an arbitration-related court proceedings.
Valerie is also well-versed in injunction applications. In A v B (HCMP 1625/2021), Valerie (with Mr Jose Remedios) acted for the successful Plaintiff in obtaining a Mareva injunction and Anton Piller Order under Section 21M in aid of foreign proceedings concerning HK$708 million worth of cryptocurrency.
In addition to her Court practice, Valerie has also been a Member of the Chartered Institute of Arbitrators since 2020 and accepts instructions as arbitration counsel.
More details can be found in Valerie’s profile.
This article was first published on 31 December 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.